Raju @ Wilson v. State of Kerala

Crl.A.No.2466/2006 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943_ _CRL.A NO. 2466 OF 2006_ _AGAINST THE ORDER/JUDGMENT IN SC 11/2006 OF SPECIAL COURT_ _(NDPS ACT CASES), THODUPUZHA_ ## _APPELLANT/ACCUSED:_ _RAJU @ WILSON, S/O.KUTTAPPAN, THOMBILTHARAYIL HOUSE, AMBALAMEDU KARA, THANKAMANI VILLAGE. BY ADVS. GEORGE MATHEW PRAVEEN S. ELSA DENNY PINDIS M.D.SASIKUMARAN SUNIL KUMAR A.G DIPU JAMES MATHEW K.T. GEORGE K.V. STEPHY K REGI_ ## _RESPONDENT/COMPLAINANT:_ _STATE OF KERALA, C.I. OF POLICE, KATTAPPANA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SUDHEER GOPALAKRISHANAN – PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON_ _24.02.2022, THE COURT ON 08.03.2022 DELIVERED THE FOLLOWING:_ Crl.A.No.2466/2006 2 ## **J U D G M E N T** The appellant herein is the accused in S.C (NDPS) 11 of 2006 on the file of the Special Judge for NDPS Act cases, Thodupuzha. The aforesaid case arises from Crime No.430 of 2005 of Kattappana Police Station, which was registered against the appellant/accused for the offences punishable under Section 20(a) (1) of Narcotic Drugs and Psychotropic Substances (NDPS) Act. 2. The prosecution case in brief is as follows: On 17.05.2005, upon getting information regarding the cultivation of ganja in the property of the appellant, the Sub Inspector of Police, Kattappana along with his police party conducted an inspection in the premises of the appellant at 12.00 noon on 17.12.2005. During the course of the said inspection, it was found that the appellant was cultivating 12 plants of ganja in his property and another four plants in gunny bags placed in his property. At the relevant time the appellant Crl.A.No.2466/2006 3 was found watering the said plants. On the basis of the same, the appellant was arrested, articles seized and out of the plants seized three plants were taken as sample which were properly sealed. The remaining plants were destroyed by burning. Later, the appellant was brought to the police station and crime was registered. The appellant was produced before the learned Magistrate. On the basis of the same, an investigation was conducted by the police and upon completion thereof, final report was submitted before the Court concerned and the trial conducted. 3. In support of prosecution case, PWs 1 to 13 were examined, Exts.P1 to P28 were marked and the sample plants seized from the premises were marked as MO1 series. After closure of prosecution case, the appellant was examined under Section 313 Cr.P.C. and the incriminating materials brought out during the course of trial were put to him. He denied the same and pleaded innocence. In support of his case, the appellant examined DW1. Crl.A.No.2466/2006 4 4. After appreciating the materials available on record, the Sessions Court arrived at the conclusion that the appellant is guilty of offence punishable under Section 20 (a) (1) of NDPS Act. Consequently, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.25,000/- with a default sentence to undergo rigorous imprisonment for six months. This appeal is filed by the appellant challenging the aforesaid order of conviction and sentence. 5. Heard Sri.S.Praveen, learned counsel appearing for the appellant and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State. 6. The learned counsel for the appellant would contend that the prosecution failed to establish the guilt of the accused and the mandatory stipulations contained in NDPS Act has not been followed. It is pointed out that, even though a report as contemplated under Section 42 of NDPS Act has been marked as Ext.P2, there is nothing on record to indicate that the same was forwarded to the superior officer of PW1. In the absence Crl.A.No.2466/2006 5 of the same, the entire prosecution is vitiated as there is no proper compliance of the statutory stipulation. It was also pointed out that, the prosecution failed to prove the possession of the property by the appellant, from which the articles were seized. In support of the said contention, learned counsel pointed out the discrepancy in the door number of the building which is situated in the aforesaid property. The property from which the articles were seized were also not properly identified by the Village Officer as well, contends the learned counsel. The presence of the appellant in the premises and the arrest in the manner as claimed by the prosecution was also seriously disputed. According to him the appellant was arrested from a place at Marygiri, which is 8 km away from the place of occurrence and in support of the same, he places reliance upon the evidence of DW1. To substantiate the said contention, the learned counsel points out the discrepancy contained in Ext.P3 arrest memo wherein there is overwriting on the place of arrest mentioned therein. The mentioning of crime number in the arrest memo, Crl.A.No.2466/2006 6 despite the fact that the arrest has taken place before the registration of FIR, is also pointed out. In such circumstances, the learned counsel seeks for setting aside the order of conviction and sentence passed against the appellant. 7. On the other hand, learned public prosecutor would oppose the aforesaid contentions. It is pointed out that the possession of the appellant over the property in question is amply proved by the prosecution by virtue of the evidence of PW7 and PW8 who are the Secretary to Grama Panchayath and the Village Officer respectively. Exts.P17 and P19 were marked through them and the aforesaid documents would clearly indicate the possession of the appellant over the property in question. Apart from the above, learned Public Prosecutor would place reliance upon the evidence of PW1 and PW12 who are the police officers who detected the offence. Reliance was also placed on Ext.P24 series photographs proved by producing Ext.P25 negatives which were taken at the time when the appellant was arrested and the articles were seized. On the basis of the above Crl.A.No.2466/2006 7 materials, the learned Public Prosecutor seeks for dismissal of the appeal. 8. The crucial question that arises is as to whether the prosecution is successful in establishing the guilt. One of the main contentions put forward by the learned counsel for the appellant is regarding the non-compliance of the statutory stipulations contained in Section 42 of NDPS Act. As per the aforesaid provision, it is mandatory for the officer concerned to prepare a report and give an intimation to his superior officer before conducting any search in any building, conveyance or enclosed place. As far as this case is concerned, it is evident from the records that the articles were seized from an open place and it is not an enclosed place. Section 42 of NDPS Act envisages intimation to the superior officer only in respect of search to be conducted in any building or conveyance or enclosed place. As the place in this case is not an enclosed place, building or conveyance, the non compliance of the aforesaid provision is not material at all. It is also discernible Crl.A.No.2466/2006 8 that, Ext.P2 report has been prepared and the same has been forwarded to the Circle Inspector of Police by PW1 and this aspect is clearly deposed by PW1 in his evidence. The receipt of the same is accepted by PW13 as well. Ext.P2 also contain endorsement made by the Circle Inspector to the effect that the same was received on the same day. In such circumstances, I am of the view that the question of non-compliance of Section 42 of NDPS Act does not arise, and the said question is not a material aspect to be considered in this case for the purpose of deciding the question of the guilty of the appellant herein. 9. Another contention put forward by the learned counsel for the appellant is that the possession over the properties in question is not proved by the prosecution. When we examine the aforesaid aspect, it can be seen that the evidence available in this regard is that of PW7 and PW8. PW7 was the Secretary of the Kamakshi Grama Panchayath at the relevant time and he has issued Ext.P17 ownership certificate in the name of the appellant. The major discrepancy pointed out Crl.A.No.2466/2006 9 by the appellant is with regard to the door number mentioned therein. Ext.P5 is the mahazar prepared by PW1 at the time of seizure. In the aforesaid document, it is seen that the building which was situated in the property was bearing door number IV/8. Ext.P18 is the requisition letter issued by the investigating officer to PW7 for issuance of ownership certificate. In the said document also the secretary to the Panchayath was requested to provide the certificate in respect of the building bearing number IV/8. However, a perusal of Ext.P17, which is the ownership certificate issued in pursuance to Ext.P18, would reveal that the door number contained therein is 1/301. The explanation offered by PW7 in respect of the same is that, building number IV/8 is assigned for election purposes. However, there is absolutely nothing in Ext.P17 or in the evidence of PW7 indicating the connection of the building number IV/8, with that of the appellant herein. It is also not very clear as to whether, both the above numbers are belonging to very same building and the said building is belonging to the Crl.A.No.2466/2006 10 appellant herein. Even though it is stated that the building number IV/8 was assigned for the purpose of election, there are absolutely no supporting documents produced by the prosecution. Even though it is stated that there is a separate register kept for the same, no such register is seen produced. Apart from the above, another crucial aspect to be noticed in this regard is that, in both the numbers mentioned above, even the ward numbers are different. Normally, even when different numbers are assigned to a building there may not be any change in the ward number. Of course, there can be change in ward number on account of re-fixation of boundaries of ward numbers in the Panchayath. However, Ext.P17 would indicate that, the building number 1/301 was assigned to the aforesaid building from the year 1993-1994 to 2006-2007. In such circumstances, there is a clear discrepancy with regard to the identity of the building and the ownership over the same. 10. Another evidence is that of the Village Officer who was examined as PW8. According to him, on the basis of the Crl.A.No.2466/2006 11 request made by the investigating officer, he has inspected the property, conducted local enquiry and issued Ext.P19. In Ext.P19, it is certified that, property having an extent of 0.1465 hectors of land comprised in block No.43, Survey No.533/10 in Thankamany Village is in the possession of the appellant herein. He has also stated that the aforesaid property is having well defined boundaries. However, there are no supporting documents seen produced by them. There is yet another aspect in this regard. Evidence of PW1 and PW12 are to the effect that the property in which they have conducted search and seizure was a property without any defined boundaries. In Ext.P5 mhazar also no boundaries are prescribed. On the other hand, the evidence of PW8 is to the effect that the property to which he conducted inspection on the basis of the request made by the investigating officer is having well defined boundaries. In such circumstances, there is some shadow of doubt as to the identity of property as well as the relationship it has with the appellant herein. In such circumstances, Ext.P19 document cannot be Crl.A.No.2466/2006 12 treated as a conclusive evidence to establish the possession of the appellant over the property in which the seizure was effected. 11. Another important evidence on which the prosecution relies on, is the evidence of PW1 and PW12 as well as the contemporaneous documents such as Ext.P3 and Ext.P5. PW1 is the detecting officer. He has stated that, on getting information, they conducted a search in the premises on 17.12.2005 at 12.00 noon. When they reached the place of occurrence, they found the appellant watering the ganja plants which were planted in the property. PW12 is the head constable who accompanied PW8 and his evidence is also in tune with the evidence of PW1. The independent witnesses who were examined to prove the arrest and seizure have turned hostile to the prosecution. All of them have denied the incident. PW2 and PW3 are the attestors of mahazar as well as arrest memo. Even though they admitted their signature they have stated that they have not witnessed the incident. PW2 has stated that his Crl.A.No.2466/2006 13 signature was obtained in a blank paper, whereas PW3 has stated that his signature was taken from another place. All the other witnesses who were neighbours and relatives of the appellant were also turned hostile. The appellant had examined DW1 to establish that the arrest of the appellant was not made from the place of occurrence as shown in Ext.P3 arrest memo. 12. In support of the aforesaid contention, learned counsel places reliance upon Ext.P3 arrest memo. On perusal of Ext.P3, it can be seen that, there is an overwriting on the place of arrest. On closure scrutiny, it can be seen that, it is not a mere overwriting but on the other hand, the initial writings made thereon were effaced and subsequently written the place " as "മൈ�ക കവല which is the place where the property is situated. Even though PW1 was asked about the same during his cross examination, his explanation is that it is just an overwriting and it is not fake. Apart from the above, it is also pointed out that in Ext.P3 arrest memo the crime number is also seen mentioned. It is evident from Ext.P3 that the arrest of the Crl.A.No.2466/2006 14 appellant was effected at 12.15 pm on 17.12.2005 on the property from where the articles were seized, whereas the FIR was registered at 3.00 pm on the same day. Thus it is evident that, at the time of preparation of Ext.P3, the crime was not registered and hence it was not possible for PW1 to include crime number in the arrest memo. The aforesaid aspect, coupled with lack of any clear evidence to establish the connection of the appellant with the property where articles seized, creates serious shadow of doubt on the prosecution case. To be precise, there are several factors creating suspicion over the arrest as claimed by the prosecution. Firstly, Ext.P3 arrest memo contain certain discrepancies such as overwriting on the place of arrest and the inclusion of crime number thereon. Apart from the above, the appellant has a specific case that his arrest was not made from the place of occurrence and it was carried out at a place called Marygiri, which is 8 km away from the place of occurrence. DW1, who is a witness examined by the defence also deposed to that effect. Even though the Crl.A.No.2466/2006 15 evidence of DW1 has to be treated with caution as he being a close friend of the appellant, the discrepancies which are evident from Ext.P3 arrest memo creates a strong ground for accepting the said evidence. In order to establish the presence of the appellant, in the place of occurrence, the only evidence available is that of PW1 and PW12 coupled with Ext.P5 mahazar. It is true that the presence of the appellant is clearly mentioned by the aforesaid witnesses and in the said document. However, Ext.P3 arrest memo, which is also a contemporaneous document creates a shadow of doubt due to the discrepancies mentioned above. 13. In **Sivaraman v. State of Kerala [2020 KHC 473]** this Court considered the impact of mentioning of crime number in arrest memo. After considering various decisions rendered in this regard, it was observed by this Court in the manner as follows: “16. Ext.P7 is the arrest memo allegedly prepared by PW4 Sub Inspector at the spot of the occurrence on arresting the petitioner. PW4 has Crl.A.No.2466/2006 16 deposed that he arrested the petitioner at 20:30 hours on 24.04.2006. The time and date of the arrest are mentioned in Ext.P7 arrest memo as 20:30 hours on 24.04.2006. According to PW4, on returning to the police station with the petitioner and the articles, he registered Ext.P10 first information report as Crime No.128/06 of Santhanpara police station. Ext.P10 first information report shows that it was at 22:30 hours on 24.04.2006 that the case was registered. But, Ext.P7 arrest memo bears the crime number of the case. The prosecution has not explained how Ext.P7 arrest memo prepared at 20:30 hours on 24.04.2006 bears the crime number of the case which was registered at 22:30 hours on the same day. PW4 has not stated that he had inserted the crime number in the arrest memo subsequent to the registration of the first information report. 17. Presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the Crl.R.P.No.436/2012 occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first Crl.A.No.2466/2006 17 information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution (See Zofar v. State : 2000 Cri.L.J 1589, Kailash @ Kuddu v. State : 2000 Cri.L.J 2134 and Karunakar Bindhani v. State of Kerala : 2017 (1) KLD 48). When it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution (See Shuam Bharia v. State of Madhya Pradesh 2005 Cri.L.J 1907). It creates doubt as to the manner in which Crl.R.P.No.436/2012 seizure of the contraband substance and the arrest of the accused were effected by the police officers (See K.Kalyani v. State: MANU/TN/1070/2019).” 14. Thus, it is evident that, the aforesaid evidence does not establish the guilt of the accused. As mentioned above, Crl.A.No.2466/2006 18 there are certain glaring discrepancies in the prosecution case. The prosecution is mainly relying upon the evidence of PW7, PW8 and the documents produced through them to establish the possession over the property in question by the appellant. However, Ext.P17 which is the door number of the building situated in the property in question is completely different. In such circumstances, since there are no documents or evidence clearly establishing the ownership and possession of the appellant over the building specified in Ext.P5 mahazar, the aforesaid evidence cannot be relied upon. As far as the evidence of PW8 is concerned, even though he has identified the property, issued Ext.P19 possession certificate and prepared Ext.P20 sketch, the same also does not clearly establish the link of the property with the appellant herein. There is some serious dispute as to the identity of the property. Ext.P19 would indicate that the property in question is a Government ‘tharisu land’ which is not assigned in favour of any person. Even according to him Ext.P19 was issued on the basis of local Crl.A.No.2466/2006 19 enquiry and he has not issued the same on the basis of any records maintained by him. In such circumstances, much reliance cannot be placed upon the same. In the absence of any clear evidence as to the possession of the property in question by the appellant, what remains is the physical presence of the appellant in the property when the inspection has taken place. When we examine the aforesaid aspect, as I have already observed above, there also serious discrepancies with respect to the same. This is particularly because of the discrepancies as found in Ext.P3 arrest memo. In such circumstances, the materials produced by the prosecution cannot form the basis of an order of conviction, as it is not safe to arrive at a finding of conviction on the basis of such materials. 15. There is yet another aspect which fortifies the above finding. It is the specific case of the prosecution that, when the inspection was conducted, the appellant was found watering the plants by using a plastic mug. No recovery of such plastic mug Crl.A.No.2466/2006 20 was carried out. Yet another case of the prosecution was that, out of the 16 ganja plants, four plants were found planted in gunny bags filled with soil. No recovery of such gunny bags were also made. This is an additional circumstance which creates shadow of doubt over the case of the prosecution. 16. In such circumstances, when the entire evidence adduced by the prosecution is examined, the only conclusion possible is that, they failed to establish the guilt of the accused. In the result, this appeal is allowed. Conviction of and the sentence imposed upon the appellant as per judgment dated 12.12.2006 in SC (NDPS) 11/2006 passed by the Court of Special Judge for NDPS Act cases, Thodupuzha is hereby set aside. Appellant is acquitted of all the charges. Sd/- ## **ZIYAD RAHMAN A.A. JUDGE** DG/4.2.22